A disclosure: In terms of the "versus" argument, I stand solely on the "civil libertarian" side and this is not going to be nice to the "Neo-Redeemer" side.

The recent news of McDonald v. City of Chicago being granted cert. It is pretty well assumed that the current court composition will lead to incorporation. The questions which may not be elucidated or assumed until at least oral argument, or even until the release of the decision is in what manner (P&I versus due process) and in what way (intermediate versus strict scruntiny, or perhaps continuing the current detente).

The recent debate over the possibility of overturning The Slaughter-House cases and re-opening of post-Civil War history may have some interesting battle lines drawn, in which may see some gun owners, persons who are as rabid against federal gun control laws such as Assault Weapons bans among others, be politically aligned with anti-gunners such as Richard Daley, Gavin Newsome, and Michael Bloomberg.

Why would some gun owners do this? "States rights" is the word used to describe this movement by adherents of this ideology. To be sure, this form of "States rights" is fundamentally different than the current arguments being made by the state of Montana with the assistance of SAF and MSSA in regards to firearms being made solely within the states borders.

A better term for this movement would be "Neo-Confederate" or "Neo-Reedemer", and in order to understand the reason for this, requires study of the post Civil War era. From 1865 to 1868, several states, and more specifically, local officials, were engaging in acts of terrorism, forced disarmement of blacks and "carpetbaggers". These state and local officials led local townspeople who were not government affiliated to engage in these sort of acts against the Freedman, putting them in squalor and essentially making them little more than slaves. To rectify this situation, Rep. John Bingham (R-OH) and Sen. Charles Sumner (R-MA) drafted the 14th amendment. Alan Gura's cert petition (http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf) as well as his reply brief (http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_reply.pdf) to Chicago's begging SCOTUS not to take the case explains that these two founders of the 14th amendment had intended the privileges and immunities clause of the 14th amendment to reverse the Dred Scott decision in it's entirety.

The historical Redeemer (http://en.wikipedia.org/wiki/Redeemers) movement had apparent allies in the US Supreme Court, as evidenced by the Slaughter-House Cases where they essentially nullified the 14th amendment's privileges and immunities clause. This caused great dispair to Rep. Bingham, who saw his life's work destroyed by a narrowly divided pro-Redeemer Supreme Court. Further cases, such as Cruikshank and the Civil Rights cases, allowed the white Redeemer governments to both openly support apartheid and mass murder of disfavored racial, political, and religious groups. This includes their right to keep and bear arms to be able to protect themselves from not only state controlled groups which wanted to oppress and murder them, but also private groups such as the White League and the Red Shirts.

After the Slaughter-House Cases, a historiographical school of thought called the Dunning School (http://en.wikipedia.org/wiki/Dunning_School) of thought, which was taught in schools throughout the south. Taught from grade school all the way into college, this school of thought dominated southern culture, including it's perspective on the Slaughter-House Cases and taught essentially that the states were free to deny civil liberties to whomever it chose, for whatever reason. Federal gun bans were considered anathema, but state gun control was considered A-OK, if only to keep disfavored groups in check.

The successors of the Redeemer movement included opposition to Brown v. Board of Education in 1954, and the general Civil Rights Movement, all the way from desegregation to the striking down of anti-miscegnation laws. The entire architecture of legal support for this belief is the Slaughter-House Cases made the P&I argument completely inapplicable to state actions. It was also showed by the annoyance of states at being forced to piecemail follow the 1st, 4th, 5th, and 6th amendments (partially in some cases), which is enunciated at first by the case of Gitlow v. New York.

Since the taking up of McDonald by SCOTUS, there have been rumblings by a minority of legal wonks, scholars, as well as general laypersons that Alan Gura is somehow flat wrong on P&I. This is enunciated by a posting over at the Sean Hannity (http://forums.hannity.com/showthread.php?p=61865191) forums by "johnwk". In the same thread, "Safiel" does not recognize the 14th amendment as even being ratified legally. Further information was posted by "Peter" over at the Volokh Conspiracy (http://volokh.com/2009/09/30/background-reading-for-supreme-courts-new-14th2d-amendment-case/#comments), who is attempting to engage in historical revisionism. Here is some further telling language from "johnwk":

For example, Alan Gura’s notion [making the first ten amendments in our federal Constitution applicable to the States] has allowed progressives to use the 1st Amendment to attack religion within the various united states on various levels and especially use it to impose a federal straight jacket in State created public schools systems, virtually kicking references to God out of the schools. While the Fifth Amend. is now used by progressives to gain federal protection for criminals using such things as Miranda rights, arbitrarily dictated and decided by federal courts, who allow criminals to go free because of “technicalities” pointed to by Justices who really are imposing their own ideas of social justice.

It appears that Mr. Johnwk appears to think that the states should be able to put in state religions, and that it's A-OK for the states to disarm it's populations. It's very clear that "Johnwk" and others of his ilk are of the belief that even Gitlow v. New York is a mistake, and that states should run roughshod over the civil liberties of it's people. These "Neo-Redeemers", as I call them, would call for insurrection against the federal government for forcible disarmament, but then support the states doing the same assuming that they live in states where there's no state constitution RKBA provision, or which has been interpreted in a way to make it a nullity, and only have the state courts to rely on. Basically, if the President by decree bans guns, they will insurrect. The Governor, a County Executive, or a City Mayor does the same thing, especially against a disfavored population ("Liberals", "Blacks", "Gays"), they will gladly take up arms against that population, kicking in doors, and demanding the guns, just like what happened in New Orleans after Katrina. My guess is that he didn't support the lawsuit against New Orleans by SAF and the NRA to stop the gun seizures. "Gotta keep them federal judges from imposing their will on the states and localities" after all.

Johnwk is also right to be concerned that his ox's will be gored. For example, the Constitutional Accountability Center, a progressive legal think tank, is asking for SCOTUS to review P&I as it will effect some of their issues. I predict that there will be an effort to get both State and National ACLU organizations, gay rights groups, and so on, filing amicus briefs calling for Slaughter-House to be overturned and to put P&I to be in full effect.

Regardless of whether or not some people like the potential consequences of a full P&I (marriage equality, application of right to jury for all criminal and civil offenses etc), the fact that Johnwk and Peter (from the Hannity Forums and the Volokh Conspiracy Forums respectively) are all too willing to ignore the framer of the 14th amendment (Bingham) is the same kind of disgusting historical revisionism that the anti-gunners engaged in from the 1930's to all the way to Heller last year.

I believe that in the gun rights movement, a strong majority, especially moreso in California due to the lack of RKBA in the state constitution, would stand against this very loud minority who will howl and complain if P&I incorporation is done. They must be treated no differently than the anti-gunners, as historical revisionists who would deny you your RKBA just as much as the anti-gunners who kept repeating the lie about "collective rights", as long as it is a state/local actor. To leave them unchallenged on these forums and not be called out as historical revisionists will only allow it to fester. Full incorporation is the constitutionally and legally correct method of applying the bill of rights to the states, without picking and choosing. To chose any other method of intellectually dishonest and revisionist.

Will it cause a schism? It *could*. I would say that at least 70-80 percent of the "gun rights activist" population would be on the civil libertarian side, even more so in California after the horrific abuses by the State Legislature. Unfortunately, not every gun owner is a "gun rights activist".

Only time will tell. Food for thought, and yes, comments are welcome.

-Gray

Ike Arumba

10-02-2009, 6:53 AM

"Redeemer"? Where did that come from?

gazzavc

10-02-2009, 7:21 AM

Too early in the morning for this one.

I'll check back later after some coffee...............

johnny_22

10-02-2009, 7:26 AM

I was describing how a SC Chicago ruling could overturn this and really change a lot of state law, that have nothing to do with firearms. She was surprised

GrizzlyGuy

10-02-2009, 7:44 AM

I think you're right, such a schism will likely form. The Bill of Rights includes nine other amendments in addition to the 2nd. The 10th is the source of the states rights movement that you mention:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

States that intend for the 2nd amendment to apply to its citizens usually make a statement equivalent to 2A in their state constitution (ex: NH and NV). It therefore could easily be argued by folks in the states rights community, even the pro-gun members, that it is still up to the states to make the determination about how much (if any) of 2A applies to its citizens.

Therein lies the dichotomy and source of the schism as you assert: Someone who believes in all of the Bill of Rights must now decide that one or the other amendments trumps the other.

It will be fun to watch this all play out. :)

Vtgunner

10-02-2009, 7:45 AM

You have a point, i trust the federal government alot more than i trust the california government. The bill of rights should apply to every form of government in this country. It is a joke that courts have to "incorporate" the bil of rights. I applaud the states whose constitution incorporate the bill of rights and even more personal rights.

YubaRiver

10-02-2009, 7:53 AM

Not just gun owners, this is going to be interesting to see the left argue
for States rigfts.

tube_ee

10-02-2009, 9:06 AM

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What the 14th Amendment (properly interpreted, as it has not been since Slaughterhouse) does is to make the power to violate the Bill of Rights one of those "powers prohibited by it to the States".

There is no conflict, unless one wishes to ignore the 14th Amendment.

--Shannon

Gray Peterson

10-02-2009, 9:20 AM

What the 14th Amendment (properly interpreted, as it has not been since Slaughterhouse) does is to make the power to violate the Bill of Rights one of those "powers prohibited by it to the States".

There is no conflict, unless one wishes to ignore the 14th Amendment.

--Shannon

Either ignore, or engage in historical revisionism. Make no mistake: The people who make this argument support the idea of state/local or privately led terrorism against disfavored populations.

Gray Peterson

10-02-2009, 9:21 AM

I was describing how a SC Chicago ruling could overturn this and really change a lot of state law, that have nothing to do with firearms. She was surprised

She? Wife? Friend?

Mikeb

10-02-2009, 9:26 AM

"the right of the people to keep and bear arms shall not be imfringed."

""The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

It seems to me that the right to keep and bear arms is already reserved to the people.
what did I miss?
Mike

GaryV

10-02-2009, 9:34 AM

What the 14th Amendment (properly interpreted, as it has not been since Slaughterhouse) does is to make the power to violate the Bill of Rights one of those "powers prohibited by it to the States".

There is no conflict, unless one wishes to ignore the 14th Amendment.

--Shannon

Exactly right. Unless one wants to argue that the 14th Amendment is invalid (as one cited poster apparently did), these "neo-redeemers" don't have a leg to stand on. The 14th Amendment was quite clearly meant to incorporate at least the first 8 amendments of the Bill of Rights against the states. And being part of the Constitution itself, it is, by definition, constitutional.

As to whether it was legitimately ratified, it was. The Southern states didn't get to vote, because they had voluntarily removed themselves from the Union. They were, through their own wishes and actions, no longer members of the United States, and were therefore not entitled to a vote (a couple had already officially rejoined the Union, but most hadn't yet when the amendment was ratified). They have no grounds on which to protest the fact that the remaining US states modified the Constitution in their absence. That's simply one consequence of the "I'll take my ball and go play by myself" approach to solving the antebellum political problems of the country.

dustoff31

10-02-2009, 9:44 AM

Either ignore, or engage in historical revisionism. Make no mistake: The people who make this argument support the idea of state/local or privately led terrorism against disfavored populations.

An interesting remark. It appears that the "schism" already exists, at least as you see it.

Swatter911

10-02-2009, 9:57 AM

Thank you for sharing your thoughts Gray. That was an interesting perspective on the situation and I think your concerns are valid with regard to the potential for a schism to develop.

M. D. Van Norman

10-02-2009, 11:05 AM

The schism has been here for a long time, but so far it has rarely kept the civil libertarians and the states’ rightists from working together on the right to arms. The statists have been relatively quiet here at Calguns for a while, perhaps because they recognize how abusive California has been where firearms are concerned. That fact tends to undermine their arguments all too clearly.

I disagree with the states’ rightists, but I admire their faith in democracy.

curtisfong

10-02-2009, 11:41 AM

The statists have been relatively quiet here at Calguns for a while

From what I can tell, the smaller your state, the more likely you are a "statist".

CA has the advantage of wielding a very large amount of power and influence at the Federal level. To that end, their population doesn't fear a large Federal Government, and it doesn't fear CA losing rights as a "State".

Notwithstanding other ideology inconsistencies, that is, as brought up in this thread:

All in all, though Gray, an EXCELLENT post. I have sent it to several of my friends.

dantodd

10-02-2009, 12:05 PM

I think you're right, such a schism will likely form. The Bill of Rights includes nine other amendments in addition to the 2nd. The 10th is the source of the states rights movement that you mention:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Yes. And the 14th amendment, like it or not, is now the law of the land and it guarantees individuals a lot of rights that previously the states would have been able to abridge. The 14th does not really set up a battle between the states and the federal government, it sets up a battle between the states and their residents.

Californio

10-02-2009, 12:07 PM

Robert A. Levy has an editorial in the current issue of Cato Policy Report under the topic of "How Gun Litigation Can Restore Economic Liberties" This case of 14th incorporation will send many ripples across the waters of American Society hopefully for the good of all.

1JimMarch

10-02-2009, 10:51 PM

My take on US history overall is that so far, state and local governments have violated civil rights more often than the Feds.

The framers of the 14th (led by John Bingham) knew this full well. In 1858 South Carolina passed a law declaring the death penalty for any preacher who promoted the abolition of slavery from the pulpit - regardless of the race of the preacher.

You can't possibly support something like that and be a supporter of American principles.

Ideas like that were demolished at gunpoint by way of the 14th Amendment - or at least, they were supposed to be and damned well needed to be. Instead by 1876 and the Cruikshank decision, the "state's right to terrorism" side won for literally generations. Brown v. Board of Education (1954) and cases like it started to reverse the trend, but the job won't be finished until the P&I clause is fully restored.

anthonyca

10-02-2009, 11:32 PM

Great post. Thank you very much. Calguns and it's members have tought me so much that I never learned in school.

press1280

10-03-2009, 5:15 AM

Some of the hardcore states rights advocates take the position that the Freedmen should have sought help from terroist KKK activities through their local and state officials, and not the Federal government. Would anyone in their right mind go back to a government that thinks of you as nothing more than a slave or at best a second class citizen? I don't think the Freedmen had the legal know-how to "vote with their feet" and only knew their trade in the fields, thus, they stayed in the South.
While I agree the Federal courts have gone way overboard in incorporating "rights" not listed in the BOR, the 2A was THE right most mentioned by the 14th's framers, and should have been recognized at the get-go.

bulgron

10-03-2009, 8:19 AM

Some of the hardcore states rights advocates take the position that the Freedmen should have sought help from terroist KKK activities through their local and state officials,

I'm pretty sure that they did seek help from their state and local officials, at least at first. It probably went like this:

See? Asked and answered. And, clearly, the State's Rights advocates on this issue are just really important people who need to get back to their suppers with a laugh and a wink. Great people, them. However would we get along without them?

Not that anything like that ever happens anymore.

SCC Resident: "Sheriff Smith! Sheriff Smith! There's a man who wants to stab me in the eye and rape my wife! I need a CCW!"

Sheriff Smith (with a twinkle in her eye): "But are you a billionaire who 'collects rent' from your tenants, sometimes at night?"

SCC Resident (confused): "Well, no ..."

Sheriff Smith (laughing): "Oh, you, always funnin' around. Acting like you're an important person. Now, run along, I have to finish my white whine and cheese...."

Gray Peterson

10-03-2009, 8:43 AM

I'm pretty sure that they did seek help from their state and local officials, at least at first. It probably went like this:

See? Asked and answered. And, clearly, the State's Rights advocates on this issue are just really important people who need to get back to their suppers with a laugh and a wink. Great people, them. However would we get along without them?

Not that anything like that ever happens anymore.

SCC Resident: "Sheriff Smith! Sheriff Smith! There's a man who wants to stab me in the eye and rape my wife! I need a CCW!"

Sheriff Smith (with a twinkle in her eye): "But are you a billionaire who 'collects rent' from your tenants, sometimes at night?"

SCC Resident (confused): "Well, no ..."

Sheriff Smith (laughing): "Oh, you, always funnin' around. Acting like you're an important person. Now, run along, I have to finish my white whine and cheese...."

This is one of the reasons I posted this here instead of over at the High Road. Folks in California understand all too well about state and local abuses of civil rights.

As for someone who commented "You think there's already a schism". Partly. Post something about CCW reciprocity bills in Congress, and you'll find these howlers out in force. Worse, when you point out the fact that the FOPA transport provisions are based on the same issue, they sit there silent, they say nothing, and they wait 6 months later until the next person posts about the new Congressional CCW reciprocity bill, and then they banter. I have to remind them of FOPA. The cycle keeps going over and over again.

Gray Peterson

10-04-2009, 2:41 AM

Not just gun owners, this is going to be interesting to see the left argue
for States rigfts.

You're assuming, of course, that "the left" is this monolithic group of people who ALL believe that gun control is a good thing.

"The left" is basically our only shot of getting a 5th vote for P&I incorporation, which is the truly desired method of resolving the incorporation issue. You bolster the some state ACLU orgs and gay rights organizations in amicus briefs, and get enough of them to convince the enough of the "left" justices to squash [b]Slaughter-House[/i], even if they do concurring and dissents in part (Concurring that Slaughter-House is wrongfully decided and all of the BoR applies to the states, but dissent due to their position in Heller), we will, completely and totally.

That being said, Jim March posted something which quite explained the 14th amendment much better than I can:

OK. What's been winning in court is the truth, as it's come out in recent scholarship.

Here's the details:

Between approximately 1850 and 1876, there was a civil rights movement in America that attempted to go even further than anyplace Dr. King and company went generations later. 1876 was the year it died, we'll get back to that. Remnants of that period still exist, notably the 13th, 14th and 15th Amendments plus Federal civil rights law such as 42USC1983. It's leader wasn't Abraham Lincoln as you'd suppose, rather it was Ohio Republican congressman John Bingham, primary author of the 14th Amendment.

The goal of that movement was to prevent states from committing civil rights violations. As one example of their concerns, in 1858 South Carolina passed a law declaring a death penalty offense for any religious leader who called for the abolition of slavery from the pulpit, stomping all over the entire First Amendment (freedom of speech AND religion in one shot). They could get away with this because the US Supreme Court had declared that states didn't need to honor the Bill Of Rights.

The other US Supreme Ct. ruling they had to worry about was the infamous Dred Scott case of 1856. That stinker wasn't just a pro-slavery case, it was a pro-racism case. It said that blacks don't have the “privileges and immunities of US citizenship”, and that therefore various civil rights could be stripped from them. They went so far as to name a whole slew, including the right to “bear arms, singly or in companies”.

Worse, the Civil War didn't solve much – it solved slavery, but not the pro-racism ruling in Scott or the state's abilities to run rampant over the Bill Of Rights.

The 14th Amendment was supposed to fix that by changing the constitutional structure out from under the court:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Bingham explained exactly where the “privileges and immunities” language was from: Dred Scott. He used the language of the case he intended to overturn to do so because "P&I" as lawyers call it was conveniently defined in Dred Scott.

The Supreme Court didn't like being overturned. In a series of cases they decided to bar the Federal government from limiting civil rights abuses by states. This culminated in the 1876 case of US v. Cruikshank, holding that Louisiana's violations of the 1st, 2nd and 15th rights of over 100 now-very-dead-from-rioting blacks – they were stripped of weapons by Klan-affiliated cops and then murdered wholesale for daring to try to vote (15th Amendment) and peacefully gathering for that purpose (1st Amendment).

In this and other cases, the Supreme court destroyed the 14th Amendment as a functional document – pretending among other things that they had no idea what “privileges and immunities” meant.

In the 20th Century the 14th Amendment was rebuilt – sort of. Under a new doctrine called “selective incorporation” pieces of the Bill Of Rights were applied as limits against the states one piece at a time, as they came up and were declared “fundamental to due process or liberty”.

Numerous individual justices called this fraudulent as it happened. Hugo Black was the most outspoken but wasn't the only one, and it usually came from a “Liberal” direction.

Now, in this “gun case”, the pro-self-defense side argues that the court could “selectively incorporate” the 2nd as it's done with other civil rights – but that a more responsible direction would be to finally repair the “privileges and immunities” clause sabotaged by the court in the late 19th century. The court picked this case out of three possibly because it was the only one that argued a P&I process – which in turn repairs a lot more than just “gun rights”. Other pieces of the Bill Of Rights still aren't limitations on the states including excessive fines and the right to a grand jury indictment in major crimes. Weakening the state grand juries has in turn crippled a barrier against local corruption in many states.

The reason all of this has come to a head now is because of scholarship regarding the original intent of the 14th Amendment. In 1998 Yale law professor (and noted Liberal) Akhil Reed Amar wrote “The Bill Of Rights” in which quotes he found of John Bingham supporting gun rights for the newly freed blacks via the 14th Amendment. Amar was taken seriously because he's NOT a “pro gun” guy, in fact he was visibly disturbed by what he found – but was honest enough to report it anyhow.

We already know how the Supreme Court will rule because in the Heller case, they condemned the Cruikshank decision allowing states to violate the 2nd Amendment. They cited with approval the 2008 book by Charles Lane “The Day Freedom Died” in which “the day” was the day the Cruikshank decision came down. In doing so they issued the most harsh condemnation of their own historical injustice since Brown v. Board of Education overturned “separate but equal”.

The fat lady hasn't sung yet but she's left the dressing room, she's on stage and about to inhale.

artherd

10-04-2009, 3:21 AM

Food for thought, and yes, comments are welcome.

I have only one thought: The states may not ignore the Bill of Rights.

Period.

dfletcher

10-04-2009, 3:44 AM

A disclosure: In terms of the "versus" argument, I stand solely on the "civil libertarian" side and this is not going to be nice to the "Neo-Redeemer" side.

The recent news of McDonald v. City of Chicago being granted cert. It is pretty well assumed that the current court composition will lead to incorporation. The questions which may not be elucidated or assumed until at least oral argument, or even until the release of the decision is in what manner (P&I versus due process) and in what way (intermediate versus strict scruntiny, or perhaps continuing the current detente).

The recent debate over the possibility of overturning The Slaughter-House cases and re-opening of post-Civil War history may have some interesting battle lines drawn, in which may see some gun owners, persons who are as rabid against federal gun control laws such as Assault Weapons bans among others, be politically aligned with anti-gunners such as Richard Daley, Gavin Newsom and Michael Bloomberg.

Why would some gun owners do this? "States rights" is the word used to describe this movement by adherents of this ideology. To be sure, this form of "States rights" is fundamentally different than the current arguments being made by the state of Montana with the assistance of SAF and MSSA in regards to firearms being made solely within the states borders.

Will it cause a schism? It *could*. I would say that at least 70-80 percent of the "gun rights activist" population would be on the civil libertarian side, even more so in California after the horrific abuses by the State Legislature. Unfortunately, not every gun owner is a "gun rights activist".

Only time will tell. Food for thought, and yes, comments are welcome.

-Gray

Refreshing to see that some one else remembers Representative Bingham and Senator Sumner - I am of course disappointed that one of my forbears Representative Stevens (PA) is discarded regarding the 14th but shall forgive. :)

I think this points outs a genuine concern - simply put, might one of the 5 Justices who decided in favor of Heller on the 2nd retreat from incorporation via the the 14th. Just as one of the four who decided against Heller may tend to uphold the principle of the 14th regardless of the specific right (with which they disagree) in question, I think it is a real possibility that Thomas or Scalia or may go aganst the 14th despite having decided in favor of Heller on the 2nd.

It's a very interesting game being played - I hope it is addressed simply as "fundamental right = incorporation".

Gray Peterson

10-04-2009, 3:57 AM

Refreshing to see that some one else remembers Representative Bingham and Senator Sumner - I am of course disappointed that one of my forbears Representative Stevens (PA) is discarded regarding the 14th but shall forgive. :)

I think this points outs a genuine concern - simply put, might one of the 5 Justices who decided in favor of Heller on the 2nd retreat from incorporation via the the 14th. Just as one of the four who decided against Heller may tend to uphold the principle of the 14th regardless of the specific right (with which they disagree) in question, I think it is a real possibility that Thomas or Scalia or may go aganst the 14th despite having decided in favor of Heller on the 2nd.

It's a very interesting game being played - I hope it is addressed simply as "fundamental right = incorporation".

I also would like to enunciate one reason we need P&I incorporation is "bear".

Both McDonald AND Heller were both keep cases. Palmer and Sykes are "bear" cases, however I can see the local sheriffs playing these stupid gotcha games, saying "Well keep is incorporated, but bear is not", or some other such crap.

We have P&I incorporation, and this will no longer be an issue.

advocatusdiaboli

10-04-2009, 6:05 AM

First, Gray excellent essay and history lesson we should remember. Thank you for taking the time to pen that detailed and well-crafted essay. that's the kind of forum talk that brought me here, why I visit, and sets an example for me to aspire to and I need polish.

Second, Gray thanks for saying this:"You're assuming, of course, that "the left" is this monolithic group of people who ALL believe that gun control is a good thing."

I am a social and even somewhat political liberal strongly in favor of gun rights. All this labeling to demean and dismiss people is anti-democracy. It's as if we as a nation have decided debate and compromise are old fashioned and we should just overpower those whose views conflict with ours and force our will down their throats and tell them to like it. GW "The Decider" Bush and Dick "I'll take on even the CIA if they cross me" Cheney did that for 8 years and now the other side wants revenge--it's becoming an arms race and we'll all lose. In the world's greatest success story for democracy reasoned debate and compromise has given way to totalitarianism and fascism.

And Last, "Unless one wants to argue that the 14th Amendment is invalid (as one cited poster apparently did), these "neo-redeemers" don't have a leg to stand on. The 14th Amendment was quite clearly meant to incorporate at least the first 8 amendments of the Bill of Rights against the states. And being part of the Constitution itself, it is, by definition, constitutional."

Well, you got it partly right: the Supreme Court with their newest member Sotomayor gets to decide the nuances of what, how, and when the 14th applies not us. And it's resting on a shifting sand blown by political winds. And they get to pick and chose their cases as they come along to tinker with it or not. When CA wanted tougher emissions standards than the Bush EPA, they were without recourse. And it can get worse. For example, those 9 people decided a national election a few years back. Those of you desiring that outcome didn't flinch, but you should have--because the character of the court is changing and now that they know they can get away with that, their power is increased. Close and closer to a oligarchy we slide. Worrisome to me--am I alone in that concern?

socal2310

10-04-2009, 6:54 AM

To be honest, as a libertarian inclined conservative, I wasn't terribly distressed by the decision with regard to the contested 2000 election. If the Florida election hadn't been a statistical tie, the courts would have simply kept out of it as they did in so many other cases where voter fraud was alleged. I think a far more honest way of dealing with that election was by simply flipping a coin, but can you imagine the howling that would have erupted from the losing side on that one?

Ryan

bridgeport

10-04-2009, 6:58 AM

Once upon a time, say like the 18th century, lowly folk were born, lived , and died all within a small radius, something like 26 miles or so if my memory serves me. Today, in the time it took for a man on horseback to get from farm to town, a person can fly from east coast to west, northern border to southern,
and just about anywhere in between. One only need look at a map of the United States, to see that the older eastern states, especially the northern states, are very small, while the most southern, midwestern, and western states are geographically larger, although not necessarily more populous.
Today, These United states are just that, United, and it is nice to think that in what has become a small world, that one does not lose their rights by stepping from Arizona, into say, California. Hence the need for nationwide limitations on how ANY government, be it State, Federal, or local, may deprive one of their rights, which by the way do not need to be enumerated in the bill of rights to exist, according to our founding documents. So, in the upside down position we find ourselves, we do need the SCOTUS to find for
incorporation lest our "county states" and feds run even more amok than they already have.

PatriotnMore

10-04-2009, 7:28 AM

Great read, thanks for taking the time to articulate a well written piece.

1JimMarch

10-04-2009, 8:24 AM

Umm....Gray somehow left my name off that second, longer mini-essay :).

To be honest, as a libertarian inclined conservative, I wasn't terribly distressed by the decision with regard to the contested 2000 election. If the Florida election hadn't been a statistical tie, the courts would have simply kept out of it as they did in so many other cases where voter fraud was alleged. I think a far more honest way of dealing with that election was by simply flipping a coin, but can you imagine the howling that would have erupted from the losing side on that one?

Ryan

Why not a re-vote instead? Florida bungled the voting and they should have been forced to re-do it properly with the Feds riding them and watching every move. And Harris should have been removed--a national vote is too important to this democracy let any state or local government miscarry it through negligence or act with impunity. An example should have been made of them. No matter how you spin it, 9 people ended up selecting the president of the United States of America. How many other important decisions can you abdicate and assign to them and still think of your self as free self-determining? My answer: zero.

GaryV

10-04-2009, 8:34 AM

And Last, "Unless one wants to argue that the 14th Amendment is invalid (as one cited poster apparently did), these "neo-redeemers" don't have a leg to stand on. The 14th Amendment was quite clearly meant to incorporate at least the first 8 amendments of the Bill of Rights against the states. And being part of the Constitution itself, it is, by definition, constitutional."

Well, you got it partly right: the Supreme Court with their newest member Sotomayor gets to decide the nuances of what, how, and when the 14th applies not us. And it's resting on a shifting sand blown by political winds. And they get to pick and chose their cases as they come along to tinker with it or not. When CA wanted tougher emissions standards than the Bush EPA, they were without recourse. And it can get worse. For example, those 9 people decided a national election a few years back. Those of you desiring that outcome didn't flinch, but you should have--because the character of the court is changing and now that they know they can get away with that, their power is increased. Close and closer to a oligarchy we slide. Worrisome to me--am I alone in that concern?

I agree with you completely. However, you took my statement slightly out of context. I wasn't referring to political realities, but to logical arguments and historical fact.

Like you, I'm neither "conservative" nor "liberal" as these terms have become partisanly defined in the US, although strict idealogues often accuse me of being one or the other. I recognize that both sides are unconscionably guilty of forcing self-serving political agendas down our throats by cloaking them in partisan robes and selling them wholesale to the largely ignorant masses who would follow a brand-name right through the gates of Hell rather than adopt real principles for themselves. And I also understand full well that the Supreme Court is just as subject to these trends as any other part of society. As I always point out to those who see no wrong in their own side bending or breaking the rules, you should never give anyone in government any power that you would not wish your worst enemy to have, because, inevitably, they eventually will. How many Bush supporters who saw nothing wrong in the Patriot Act 4 years ago aren't so happy that Obama now has the legal power to monitor all their communications without a warrant? In politics, all swords are double-edged and cut both ways. It's why I am always opposed to the appointment of any justice who is not a libertarian and strict constructionist, whatever their political affiliations. It is truly frightening that all our rights are held or lost at the mere whim of a simple majority from a body of 9 political appointees.

yellowfin

10-04-2009, 8:58 AM

In addition to the 9 political appointees, it is clear how just a handful of mayors of large cities who are elected by partisan machines wield a disproportionate amount of power over an increasingly large percentage of the nation's population. They too seem little if at all beholden to the people at large and have little fear or reservations about stomping on individual liberty.

Harley Quinn

10-04-2009, 9:03 AM

Posted By: ScottM16 (October 4, 2009 at 11:20 AM)

"Last year the court ruled 5-4 that the right to bear arms flows to and from individuals, even though it is mentioned in the Constitution in the context of a "well-regulated militia."

Mr. Fineman this is wrong. The court held 9-0 that it was an individual right unconnected to the militia, the 5-4 split came over the meaning of "shall not be infringed", the minority opinion was that the District of Columbia could infringe on the civil rights of it's citizens.

"when President Barack Obama get's the chance to nominate an ideological tide-changing justice."

I don't know about anyone else but I find this to be frightening, because the president (D or R) should not be appointing ideologues. The president should be appointing judges with a track record of judicial integrity and adherence to the outlines and restrictions of the Constitution. I also find it somewhat ironic that Mr Fineman rails against the "judicial activism" of the core four and then goes on to encourage the same thing.

I am fine with the expansion of previously unenumerated right via the 9th amendment like the right to privacy in Roe v Wade but I would also like the court to vigorously defend those rights that are clearly spelled out in the Bill of Rights and ideologues rarely do that.

This is a good read.

The idea of the individuals right will not be infringed is huge...Jim I believe you are off the mark some. The founders did not think about the airplane either.

Regards

Mulay El Raisuli

10-04-2009, 9:35 AM

As to whether it was legitimately ratified, it was. The Southern states didn't get to vote, because they had voluntarily removed themselves from the Union. They were, through their own wishes and actions, no longer members of the United States, and were therefore not entitled to a vote (a couple had already officially rejoined the Union, but most hadn't yet when the amendment was ratified). They have no grounds on which to protest the fact that the remaining US states modified the Constitution in their absence. That's simply one consequence of the "I'll take my ball and go play by myself" approach to solving the antebellum political problems of the country.

THIS is such a perfect response to any & all who dispute the validity of the 14A that it should be enshrined somewhere.

The Raisuli

hoffmang

10-04-2009, 10:22 AM

The other key issue here is what the Original Public Understanding of the ratification of the 14A was. Dave Hardy wrote an excellent summary of what was reported in the papers at the time. Overview here (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322323). To download the paper, click on one of the schools listed across the top on the "Download" page.

The amendment provides a broad definition of citizenship, overruling the decision in Dred Scott v. Sandford (1857), which had excluded slaves, and their descendants, from possessing Constitutional rights; this was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away. The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions. The amendment also includes a number of clauses dealing with the Confederacy and its officials.

Good one for US and us... but it was a long time coming, Hmmm...

Now parley that into the Nordyke and others being heard. I believe we are on the fast track, now...For good or bad....Or Ugly.

Regards

loather

10-04-2009, 11:56 AM

I believe we are on the fast track, now...For good or bad....Or Ugly.

I think it'll be quite a bit of good, with a whole rear-end-load of ugly thrown in.

Gray Peterson

10-04-2009, 12:20 PM

Umm....Gray somehow left my name off that second, longer mini-essay :).

My post said "He". I should have put in "Jim March". This is what happens when you post late at night.

dfletcher

10-04-2009, 3:17 PM

The other key issue here is what the Original Public Understanding of the ratification of the 14A was. Dave Hardy wrote an excellent summary of what was reported in the papers at the time. Overview here (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322323). To download the paper, click on one of the schools listed across the top on the "Download" page.

-Gene

"Impeached" by David Stewart is an interesting book that, while dealing not specifically with the 14th does detail the political climate in which the amendment was passed. Interesting to see that the actions of such a small number of men in politically charged partisan politics can have an effect nearly 150 years later.

1JimMarch

10-04-2009, 5:36 PM

My post said "He". I should have put in "Jim March". This is what happens when you post late at night.

No problem. I'm working on an expanded cleaned-up version for publication (I hope?) at:

http://www.thehighroad.us/showthread.php?t=413093

nicki

10-04-2009, 10:57 PM

Not all gun activists are civil libertarians, but the most effective ones are.

I am all for state and local government rights, but I also believe we must have a realistic means of redress against state and local government abuse.

Most Americans are under the wrong impression that the Bill of Rights does apply to the states and if it doesn't, that should be corrected.

The court of Public Opinion says that the Bill of Rights should apply to the states, the Supreme Court is not going to uphold the Slaughterhouse cases if it becomes a issue.

The real Schism will not be in the gun movement, rather it will be among the liberals because in order to breath life into the "privileges and immunities" clause, they have to breath life into the 2nd amendment.